RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        FEBRUARY 8, 2005
      DOCKET NUMBER:  AR2004106221


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Ms. Susan A. Powers               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge be upgraded to an
honorable discharge.

2.  The applicant states that he was at home on leave in November 1972,
when he was attacked by a group of civilians in Cleveland, Mississippi.  He
states that he was cut in the left bicep muscle and chased for
approximately three miles until he reached the business district where he
kicked in the back door of a store that sold weapons.  He states that when
he came out of the store he was arrested and charged with breaking and
entering.  He states that the Army let him sit in jail for over six months
and then charged him with desertion.  He states that he was court-martialed
and then sent to a retraining battalion.  He goes on to state that he
rebelled and no longer had a desire to serve in the Army, as he believed
that the Army had betrayed him and punished him unjustly.  He states that
he now knows that he was wrong; however, he was young at the time and he
believed that the Army was his new family and would be there when he was in
need, as he was taught in training.

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 9 July 1973.  The application submitted in
this case is dated 15 March 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  On 17 September 1969, he enlisted in the Army in Indianapolis, Indiana,
for 3 years, in the pay grade of E-1.  He successfully completed his
training as a radio relay and carrier attendant.  He was promoted to the
pay grade of E-2 on 20 November 1969.


4.  Nonjudicial punishment (NJP) was imposed against the applicant on
12 January 1970, for being absent from his unit from 1 January until 5
January 1970.  His punishment consisted of a forfeiture of pay, restriction
and extra duty.

5.  On 1 April 1970, he was transferred to Vietnam; and his records show
that he went absent without leave (AWOL) on 19 April 1970, prior to leaving
the Continental United States, and he remained absent until 17 May 1970.
He was promoted to the pay grade of E-3 on 30 May 1970, the same day that
he arrived in Vietnam.

6.  On 25 June 1970, NJP was imposed against him for being absent from his
place of duty for 2 hours on 21 June 1970 and from 22 June until 24 June
1970.  His punishment consisted of a reduction in pay grade, restriction
and extra duty.

7.  The applicant had NJP imposed against him again on 13 August 1970, for
being absent from his place of duty for 4 hours on 4 August 1970.  His
punishment consisted of a reduction in pay grade.

8.  On 10 September 1970, the applicant was convicted by a summary
court-martial of failure to go to his appointed place of duty 14 July and
24 July 1970.  He was sentenced to a reduction in pay grade and a
forfeiture of pay.

9.  The available records show that the applicant was seen at the 935th
Mental Health Detachment on 28 September 1970.  The attending physician’s
notes indicate that the applicant was requesting psychiatric help due to
his numerous disciplinary infractions and complaints of constant harassment
by members of his company.  He stated that he was unable to handle anger
and was often deliberately provoked.  The provisional diagnosis was poor
impulse control – passive aggressive character disorder.

10.  The physician’s Consultation Report dated 29 September 1970, shows
that having interviewed the applicant, the physician found that he was very
hostile towards the Army with his main intention being to get out of the
Army under the provisions of Army Regulation 635-212.  The physician
indicated that the applicant had control of himself and seemed rational.
The physician stated that he had no problems with the applicant in his
office and that, at that time, he was doubtful whether the applicant needed
psychiatric help; however, he would set up an interview with one of the
psychiatrists as soon as possible.




11.  On 6 October 1970, the applicant was seen by a psychiatrist who stated
that he appeared to have a character disorder of the part for which a
discharge from the service under the provisions of Army Regulation 635-212,
would be a most appropriate solution.  The psychiatrist referenced the
applicant’s numerous NJPs and the fact that he appeared to be a behavioral
problem.  The psychiatrist stated that the applicant desired to be
discharged under the provisions of Army Regulation 635-212, and that he
would probably be discharged under that provision sooner or later.  The
psychiatrist suggested the applicant’s chain of command submit the
appropriate resolution sheet if it was believed that a discharge under the
provisions of Army Regulation 635-212 was appropriate.  The psychiatrist
diagnosed him as having a character disorder and he suggested that
consideration be given to separating the applicant under the provisions of
Army Regulation 635-212.

12.  The applicant returned to the Continental United States on 25 April
1971 and he was transferred to Germany on 6 July 1971.

13.  On 9 November 1971, NJP was imposed against him for failure to obey a
lawful order and for failure to go to his appointed place of duty on
5 November 1971.  His punishment consisted of extra duty.

14.  The applicant had NJP imposed against him a fifth time on 22 November
1971, for being disrespectful in language toward his superior
noncommissioned officer.  His punishment consisted of a reduction in pay
grade.

15.  On 25 November 1971, he returned to the United States and he was
assigned to Fort Lewis, Washington.

16.  On 9 August 1972, the applicant was convicted by a special court-
martial of being AWOL from 3 January until 3 June 1972 and from 19 June
until 10 July 1972.  He was sentenced to confinement at hard labor and a
forfeiture of pay.

17.  The applicant had NJP imposed against him on a sixth occasion for
being AWOL from 17 August until 25 August 1972 and for operating a vehicle
in a reckless manner on 14 September 1972.  His punishment consisted of a
reduction in pay grade and a forfeiture of pay.  However, the record is
unclear as to the date that the actual punishment was imposed.




18.  The applicant went AWOL on 10 October 1972 and he remained absent
until 8 May 1973, when he was apprehended by civil authorities and returned
to military control on 10 May 1973.

19.  The facts and circumstances pertaining to the applicant's discharge
are not on file.  The Report of Transfer or Discharge (DD Form 214)
indicates that the applicant was discharged on 9 July 1973, under the
provisions of Army Regulation 635-200, chapter 13, for unfitness due to
frequent incidents of a discreditable nature with civil or military
authorities.  His DD Form 214 also shows that he had completed 2 years, 4
months and 25 days of total active service and that he was furnished an
Undesirable Discharge Certificate.

20.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 8 June 1976 and 28 November 1986, the ADRB
denied the applicant’s requests for upgrade.  The ADRB determined that the
applicant’s discharge was proper and equitable and that the discharge was
properly characterized as undesirable.

21.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13 contains the policy and
outlines the procedures for separating individuals for unfitness.  Specific
categories included minor infractions, a pattern of misconduct, involvement
in frequent incidents of a discreditable nature with civil and military
authorities, and commission of a serious offense.  An undesirable discharge
was normally considered appropriate.

22.  Title 10, U.S. Code, section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  The United States Court of Appeals,
observing that applicants to the ADRB are by statute allowed 15 years to
apply there, and that this Board's exhaustion requirement (Army Regulation
15-185, paragraph 2-8), effectively shortens that filing period, has
determined that the 3-year limit on filing to the Army Board for Correction
of Military Records (ABCMR) should commence on the date of final action by
the ADRB.  In complying with this decision, the ABCMR has adopted the
broader policy of calculating the 3-year time limit from the date of
exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  It appears that the actions by the Army in this case were proper.



2.  It also appears that the type of discharge directed and the reasons
therefore were appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted.  However, the available
record clearly shows that he began his acts of misconduct in April 1970
when he went AWOL prior to his going to Vietnam.  He was convicted by a
summary
court-martial, he was convicted by a special court-martial and he had NJP
imposed against him on six separate occasions as a result of his numerous
acts of indiscipline.  He had approximately 277 days of lost time due to
AWOL and confinement and considering that nature of his offenses, the
character of his discharge appropriately reflects his overall
undistinguished record of service.

4.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 28 November 1986.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 27 November 1989.  However,
the applicant did not file within the 3-year statute of limitations and has
not provided a compelling explanation or evidence to show that it would be
in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

mkp_____  slp _____  sap_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.




2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ____Margaret K. Patterson__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106221                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050208                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19730709                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 13/UNFITNESS                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  583  |144.5000.0000/UNFITNESS                 |
|2.  592                 |144.5100.0000/FREQ INVMNT W/AUTH        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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